Court, executive and the test of constitutionality

The separation of powers envisaged in the Constitution asks for the three organs of State to check and regulate each other. This safety mechanism is compromised when these organs start to work together, instead of reviewing each other

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The news that the Supreme Court had suggested that people might be required to verify their age through Aadhaar authentication before watching an OTT show on Netflix or Amazon Prime (or other such platforms) caused both hilarity and consternation. The idea of a popup window requiring you to scan your Aadhaar just as you settle down to watch the new season of Pataal Lok is equal parts funny and terrifying. While such a move might not, finally, be implemented because of how difficult it is to enforce, the Court's off-the-cuff observations do reveal the haphazard - and potentially dangerous - nature of the current legal discourse around the regulation of online content in India.

As I have previously written in this column, this process has seen a problematic blurring of legislative, executive, and judicial functions, in a way that places citizens' rights in jeopardy. Ideally, legal regulation of any kind - especially one that impacts fundamental rights, such as the right to free speech - should originate with legislative deliberation and public consultation. Following the passage of a law after this process, the executive is tasked with bringing it into operation by framing rules to do so. The Court then stands as a body whose task it is to review legislation and executive action for constitutionality, and to strike them down if they unjustifiably encroach on citizens' rights. This constitutionally envisioned process is meant to create a set of guardrails that mitigate the possibility of tyranny, or of the executive running roughshod over people's rights.